Singh (Migration)

[2018] AATA 4949

Singh (Migration) [2018] AATA 4949 (21 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harmanpreet Singh

CASE NUMBER:  1816005

DIBP REFERENCE(S):  BCC2018/192877

MEMBER:Tigiilagi Eteuati

DATE AND TIME OF

ORAL DECISION AND REASONS:          21 August 2018 at 3:40 pm (QLD time)

DATE OF WRITTEN RECORD:                31 October 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

Statement made on 31 October 2018 at 5:34pm

CATCHWORDS

MIGRATION – Cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – no course enrolment – poor course performance – non-payment of fees – family’s financial hardship – applied for various vocational courses – didn’t ask them to waiver the no study condition on bridging visa – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8 condition 8202

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 May 2018 made by a delegate of the Minister for Immigration to cancel the applicant's subclass 573 visa under section 116(1)(b) of the Migration Act 1958 (the Act).

2. At the hearing on 21 August 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The delegate cancelled the visa on the basis that the applicant had breached the condition of his visa to be enrolled in a registered course.  The issue in the present case is whether that ground for review is made out and, if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 21 August 2018 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

   Consideration of Claims and Evidence

5. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations. If the applicant has breached that condition, under section 116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with condition 8202?

6. Condition 8202 as it applies in this case requires students to be enrolled in registered courses. In the present case the visa applicant's visa was cancelled on the basis that the applicant was not enrolled in a registered course.  The Minister's delegate found that the applicant had not been enrolled in a registered course as his enrolment in a Master of Information Technology with James Cook University was cancelled on 17 July 2017.

7. Information from the PRISMS records was put to the applicant in the required way, which indicated that the applicant's enrolment in a Master of Information Technology was cancelled on 17 July 2017 for non-payment of fees.  It was also put to the applicant in the required way that the applicant was sent a notice of cancellation of his enrolment on 23 May 2017 and he did not appeal the decision to cancel his enrolment.  As a consequence his enrolment was cancelled on 17 July 2017.

8. The information that was also put to the applicant was that the applicant owed some $10,272.30 to James Cook University.  The applicant conceded that he has not been enrolled in a registered course since 17 July 2017.

9. On the evidence before the Tribunal the applicant was not enrolled in a registered course.  Accordingly, the applicant has not complied with condition 8202.

10. Having found that the applicant has not complied with the condition of the visa the Tribunal must consider whether to exercise its discretion to cancel the visa.  There are no matters specified in the Act or the Regulations that are required to be considered in relation to the exercise of its discretion.  However, the Tribunal has had regard to matters raised by the applicant as to why his visa should not be cancelled and government policy guidelines contained in the Department's Procedures Advice Manual.

11. When the applicant arrived in Australia in July 2016 he was enrolled at James Cook University in a Masters of Information Technology degree.  The applicant indicated that in his first trimester, which ran from July to October or November 2016 he was enrolled in three subjects.  He said that he failed one subject and was not sure what happened with the other two subjects.  He said that he was enrolled in the first trimester of 2017 in three subjects and failed two of the three subjects in which he was enrolled.

12. He said that about a month after he arrived in Australia his father, who is a goldsmith by occupation, became ill, that he had an intestinal infection and required an operation.  He said that his father was hospitalised for about a week in order to undergo the operation and was out of hospital by August 2016.  He said though that his father was required to pay a great deal of money for his medical expenses in 2016.

13. In addition the applicant said that it was his understanding or belief that other people in India had wished ill for his family and had been involved in black magic in order to jeopardise the applicant's father's business.  The applicant indicated that he believed that this black magic had a negative effect on his father's business.

14. In addition, the applicant said that in early 2017 the Indian Government demonetised the 500 Rupee note, and he said that this resulted in delays in his father's ability of between three days and 10 days in being able to pay for his school fees.  The applicant said that during this time in 2017 his father's business suffered greatly and the family went from a position of being financially well off to a position of losing most of the value of their business.  He said that the position was so dire that his mother had to sell her jewellery in order to support the family.

15. The applicant gave evidence that his father was unable to pay for his fees and the fees of his brother but was able to pay for the relatively inexpensive course fees for his sister's course in India.  He said that the above factors led to an inability of his family to pay for his school fees and therefore his enrolment in the Masters of Information Technology at James Cook University which was eventually finally cancelled in July 2017.

16. The applicant indicated that he had tried to pay some of the fees and gave evidence that he paid some $4,000 to James Cook University but that was not sufficient to meet his financial obligations and he was still owing some $10,000 to the university.

17. The applicant said that after his enrolment at James Cook University was cancelled he tried to enrol in other courses in Australia without success.  He said that he was unable to enrol in another Masters course because other institutions required an academic transcript from James Cook University but that James Cook University was unwilling to provide him with that transcript because he still owed them some $10,000 in fees, which he has not paid up until this day.

18. The Department of Immigration contacted the applicant on 23 February 2018 asking him for his full contact details so he could be sent correspondence.  Shortly thereafter the applicant secured an offer letter on 28 February 2018 from New England College for a Diploma of Business.  However, the applicant said that he did not take up that offer because he was aware that he was required, as a condition of his visa, to remain enrolled in what I will call a higher education course, in his case a Masters degree.

19. He said that the day before his visa was cancelled, on 29 May 2018, he received a second offer of enrolment from New England College to study a Certificate III and IV in Automotive Studies and a Diploma in Automotive Studies although he provided no evidence to the Tribunal that this was the case.

20. The Tribunal asked the applicant why he had applied for the Diploma in Business and the automotive vocational courses if he knew that those courses would not meet the requirements of his visa to remain enrolled in a Masters course or a higher education course.  The applicant said that he was unable to gain entry into a Masters course because of the aforementioned failure to be able to pay his fees at James Cook University and therefore was unable to gain a transcript, which prevented him from gaining enrolment in a Masters course.

21. He said that with the vocational courses, first the Diploma of Business and then the automotive courses, he thought that at least he would be able to complete something during his time in Australia, which would then hold him in good stead on returning to India.  The Tribunal notes at this point that the applicant gave evidence that before he came to Australia he already held a Bachelor of Computer Science from Khalsa College in India.

22. Notwithstanding that the applicant had been offered the automotive courses before his visa was cancelled, he did not continue with those courses.  The applicant said that after his visa was cancelled he approached the Department to seek a bridging visa where the no work condition was waived, so that he would be able to continue to work.  However, the applicant did not apply for a waiver of the no study condition so that he could study.

23. The Tribunal asked the applicant whether he or any of his family members would suffer any hardship if his visa remained cancelled.  He said that he would as it had always been his dream to be able to complete studies in Australia.  He said that he had seen other peers of his who had been able to study successfully in overseas countries and he wished the same for himself.  He said that his father had invested a great deal of money in his studies in Australia and that his time in Australia would be wasted if he was unable to complete any courses in Australia.

24. While he admitted that there was nothing preventing him from studying in India he reiterated that it was always his dream to be able to finish a course in Australia.

25. The Tribunal raised with the applicant its concern that as the applicant had failed at least half of his subjects at James Cook University before his enrolment there ceased, because the applicant had been unable in the past to pay his school fees when they fell due and that even at the date of the hearing he had failed to pay the $10,000 amount owing to James Cook University, the applicant may not have the ability to successfully undertake studies in Australia.

26. The applicant said that his academic ability was evidenced by his completion of a Bachelor of Computer Science in India and he said that although his family still hadn't recovered fully from the financial problems they had in the past, that he was confident that his family would be able to provide the money to pay back James Cook University for his outstanding fees and also to pay some $60,000 Australian dollars, which he said was what it would cost him in fees to complete a two year Masters course in Australia.

27. The Tribunal raised with the applicant its concern that because the applicant had not been enrolled in a registered course since July 2017, that he had applied for various vocational courses, first in business and then in automotive studies, that he had not continued with any of these courses and that he had not sought to have the “no study condition” on his visa waived by the Department, he may not have the will or desire to successfully undertake courses in Australia.

28. The applicant said that he did wish to finish a course in Australia, that he wished to finish a Masters course, that he had been unable to enrol in another course because he had not been able to pay outstanding fees to James Cook University and therefore gain a transcript which will allow him to enrol in another Masters course.  He said that he simply needed one more chance and that if given that chance he would enrol in a Masters course and complete his studies in Australia.

29. The Tribunal finds that the applicant does not have the ability to successfully undertake an education course in Australia.  This is evidenced by the applicant's poor academic performance, failing at least half of his subjects when he was enrolled at James Cook University.  It is also evidenced by the fact that the applicant has been unable to pay his fees when they fell due.

30. The applicant's evidence at the hearing was that his family were still in a dire financial position, but he asserted that his father would be able to pay the outstanding amounts for James Cook University and provide the $60,000 necessary for his fees for a Masters of Information Technology course.  The Tribunal is not satisfied that the applicant will be able to meet his financial obligations when they fall due and that is evidenced by the fact that until this day the applicant has still not paid James Cook University for the fees owed to them.  The Tribunal considers that if the applicant had the ability to do so that he would have, especially in circumstances where the applicant said that the only reason he was unable to secure enrolment in another Masters course was because he had not paid his fees at James Cook, which in turn meant that James Cook had not provided him with an academic transcript.

31. The Tribunal remains concerned that the applicant does not have the will or desire to successfully undertake an education course in Australia and that is evidenced by the fact that the applicant has not enrolled in another course despite being offered, on his evidence, two courses ,the Diploma of Business and the automotive course. It appears to the Tribunal that the applicant simply sought enrolment in these courses in order to lengthen his time in Australia rather than out of any desire to actually study business or automotive courses.

32. In addition the Tribunal remains concerned about the applicant's desire or will to study in Australia because the applicant has not studied since the cancellation of his visa and did not seek for the waiver of the “no study” condition especially in circumstances where he did ask the Department for a waiver of the no work condition so that he could work.  In those circumstances it appears that the applicant wanted to work but did not want to study.

33. The Tribunal is willing to accept that the applicant and his family members may suffer disappointment and be upset that his visa was cancelled before he was able to complete a course in Australia.  The Tribunal has also considered that, as the applicant's visa was cancelled for a breach of condition 8202, he may not be able to apply successfully for another visa for some three years from the date of the cancellation of his visa.

34. The Tribunal has considered the applicant's evidence that it has also always been a dream of his to study successfully in Australia.  However, the Tribunal finds that the applicant's lack of ability to successfully undertake a course in Australia and its remaining concerns about the applicant's will or desire to successfully undertake a course in Australia heavily outweigh any hardship that the applicant or his family may face because of the cancellation of the applicant's visa.

35. Considering the circumstances as a whole the Tribunal concludes that the visa should be cancelled.

    DECISION

36. The Tribunal affirms the decision to cancel the applicant's class TU visa.

    Tigiilagi Eteuati
    Member